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Gender-neutral passports to face UK judicial review

UK-based equality campaigner Christie Elan-Cane has won permission from the High Court in London to challenge the Home Office’s refusal to issue gender-neutral, or X passports.

Sex designations on UK passports are restricted to two options: male or female. Ten countries currently permit their citizens to opt for a third category, X, or unknown: Canada (the most recent to offer its citizens gender-neutral passports), Australia, Denmark, Germany, Malta, New Zealand, Pakistan, India, Ireland, and Nepal.

Before the hearing, Elan-Crane is reported as saying: “Legitimate identity is a fundamental human right but non-gendered people are often treated as though we have no rights. The UK’s passport application process requires applicants to declare whether they are male or female. It is inappropriate and wrong that someone who defines as neither should be forced to make that declaration.’’

According to arguments submitted by Kate Gallafent QC, counsel for Elan-Cane, as many as 1% of the UK population could apply for an X passport. They include people born with biological characteristics of both sexes (intersex), transgender people, and others “with gender dysphoria…gender variant, non-binary and other analogous categories of gender identity.”

HM Passport Office has refused to grant such passports on the grounds that it would affect other legislation, cost too much to change computer records, and increase the need for consular support abroad for gender-neutral British citizens.

But, by allowing holders of foreign X passports to enter the country is the government actually discriminating against its own citizens?

Sarah Hannett, counsel for the Home Office acknowledged that the area “is a matter of delicate social policy.”

Mr Justice Gilbart ruled that “This is an arguable case,” and a full judicial review should go ahead.

The ruling comes as the UK’s Office for National Statistics considers removing the question of a respondent’s sex from the next census over suggestions it discriminates against transgender and non-binary people. The move would make the UK one of the first countries in the world not to require its citizens to tell officials what sex they are.

Nick Drydakis has explored trans rights, in particular, in relation to labor markets and well-being for IZA World of Labor. He notes that “[t]rans individuals experience employment challenges and severe exclusions when they are unable to obtain identity documents that reflect their gender identity … Unfortunately, in many countries, trans people can change their ID documents only after undergoing sex reassignment surgery.” A large part of this community is not keen on surgically reassigning their sex. They are happy to live, experience, and celebrate their gender identity without surgical procedures. For this and other reasons covered in his article, Drydakis stresses that there should be no sex reassignment requirement related to the ability to change official ID documents.